Cinemark USA, Inc. is a co-defendant in a federal lawsuit filed in Denver on Thursday, April 7. The collective action suit alleges the theater and its janitorial services contractor, Simply Right, Inc., are in violation of the Fair Labor Standards Act. (Denver Post File)

The collective-action complaint for underpaid wages was filed in U.S. District Court in Denver alleging Cinemark USA and its janitorial services provider, Simply Right, are in violation of the Fair Labor Standards Act by classifying janitorial employees as independent contractors to dodge minimum-wage and overtime laws. The lawsuit also names Simply Right owner Daniel Kilgore and manager Beatrice Perman as defendants.

“These folks are performing labor that they are required by law to be paid at least minimum wage for,” said Boulder-based attorney Brandt Milstein, who is representing the seven plaintiffs named in the suit. “If employers were allowed to pay less than minimum wage, all low-wage workers would suffer. It is beneath the dignity of any business in Colorado to pay any employees less than minimum wage.”

Simply Right workers were paid a flat rate instead of an hourly rate to do the theater-cleaning work, the lawsuit alleges. Read more…

Many faces have come and gone during the insider trading case of imprisoned former Qwest CEO Joe Nacchio, who is slated to receive a new sentence Thursday. Under one methodology U.S. District Judge Marcia Krieger is considering, Nacchio would receive a shorter prison term. Here’s a look at the cast of characters who are here and those who have left since the 2007 trial.

Hanging tough

Government:

James Hearty – The assistant U.S. attorney delivered the trial’s opening statement. Hearty (pictured) has been involved in the case since the very beginning.

Kevin Traskos – The assistant U.S. attorney handled the cross-examination of Nacchio’s expert witness Daniel Fischel during trial. Traskos has also filed much of the paperwork related to the re-sentencing.

Anjan Thakor – New to the case, Thakor is a finance professor at Washington University in St. Louis who is serving as the government’s expert witness during Nacchio’s re-sentencing. He says Nacchio illegally gained between $23.5 million to $32.9 million.

Nacchio:

Sean Berkowitz – He was a lead attorney in the Justice Department’s successful prosecution of former Enron honchos Jeff Skilling, serving time at a prison in Littleton, and Ken Lay, who passed away in July 2006, which vacated his conviction. Berkowitz (pictured), now a partner in Chicago with Latham & Watkins, joined Nacchio’s team in 2008. He has a Vin Diesel-like persona in the courtroom and is now Nacchio’s lead attorney.

Daniel Fischel – The Northwestern University business law professor served as an expert witness for Nacchio during trial and is serving in the same capacity during the re-sentencing. He says Nacchio gained $1.8 million from the nonpublic information on which Nacchio based the stock sales that led to his conviction.

Long gone

Government:Cliff Stricklin – Lead trial attorney is now a defense attorney with HRO in Denver. He was previously with Holland & Hart.Read more…

In a court filing Wednesday, Joe Nacchio’s attorney provided a glimpse of what the former Qwest CEO has been up to behind bars.

“He has taken a number of classes as well as been involved in a number of religious activities,” Nacchio attorney Sean Berkowitz wrote in the filing.

Nacchio has “had no disciplinary problems during his incarceration” and has been actively involved in his pending legal matters – which includes his resentencing, according to Berkowitz.

Since April 2009, Nacchio has resided at Schuylkill prison camp in Minersville, Pa., serving a six-year term for insider trading.

“Counsel has spoken with Mr. Nacchio on a weekly or even more frequent basis for more than two years regarding his sentencing, appeal, resentencing, and the upcoming hearings, including during his incarceration over the past year,” Berkowitz wrote in Wednesday’s filing. “Moreover, counsel met personally with Mr. Nacchio on March 31, 2010, just two weeks ago, and discussed this same issue.”

A federal judge in Denver dealt a blow this week to the Securities and Exchange Commission’s civil lawsuit against five former Qwest officials, including former chief executive Joe Nacchio.

U.S. District Judge Marcia Krieger ruled that the SEC doesn’t have enough evidence to prove initial allegations that the defendants improperly booked revenue for Qwest from 1999 to 2002. She ordered the SEC to focus on claims that Qwest misled investors by not separating monthly, recurring sales from lump sum, one-time revenue in the company’s regulatory filings.

Investors and analysts generally place more value on recurring revenue because it better reflects a company’s financial condition.

“It becomes a very technical case, and sounds like one that is not going to be very easy for them to win,” said former SEC attorney Peter Henning, now a law professor at Wayne State University.

The SEC said today that it will not drop the 5-year-old suit and is deciding whether to ask for a reconsideration on Krieger’s ruling.
“The SEC is planning on going forward,” said SEC attorney Polly Atkinson.

Krieger’s order states that she has not addressed “the major thrust” of the case.

“That should tell you what part of the case has been affected by this,” Atkinson said.

In addition to Nacchio — who is serving a six-year prison term for criminal insider trading — defendants in the SEC case include former Qwest president Afshin Mohebbi, former chief financial officer Robert Woodruff and former accountants Frank Noyes and James Kozlowski.

The SEC is seeking the repayment of stock-sale profits, bonuses and salaries earned from 1999 to 2002.

Initial claims focused on billions of dollars in supposedly phantom revenue that Denver-based Qwest booked from swaps of network capacity with other telecommunications companies. Qwest recorded the revenue in a lump sum rather than spread out over the life of the multiyear contracts

The suit is now focused, in large part, on disclosure issues — a change that could trim several weeks off a potential trial and cut the number of witnesses by at least half.

AT&T has reached a proposed $18 million settlement of a class-action suit that alleged the company’s flat-rate early termination fee (generally between $150 and $175) was unlawful. The wireless carrier in 2008 instituted a new policy that lowered a new or upgraded contract’s ETF by $5 for each passing month.

The settlement includes $16 million in cash and $2 million in non-cash benefits for impacted subscribers.

The net is cast pretty wide for who may be included in the class. The description in this document and on the settlement website indicates that you can join the class even if you didn’t pay a flat-rate ETF. All that matters is that one of your one contracts with AT&T (or its predecessor like Cingular) included a flat-rate ETF.

The Settlement Class includes all current or former customers of AT&T Mobility or its predecessors in the U.S. who paid or were charged a flat-rate ETF at some time during the period January 1, 1998 through November 4, 2009, and/or who have or had a contract for service with AT&T Mobility that included a flat-rate ETF at some time during the period January 1, 1998 through November 4, 2009, and who have not paid or been billed a flat-rate ETF.

Claim forms are due June 14, 2010. The settlement requires final approval from a federal judge in New Jersey. Preliminary approval was granted Nov. 4, 2009.

Other carriers have previously reached similar deals, including Verizon Wireless.

UPDATE: (01/14/2010 2:35 p.m.) As it turns out, the Crooked CEO list was published June 8, 2009, according to the date stamp on this page. I’ve called Time’s PR department to get confirmation, but haven’t heard back. Not sure why the information is only surfacing now. I don’t ever recall reading about this list last June, and I pretty much notice anything that includes the words Joe and Nacchio.

Former Qwest CEO Joe Nacchio and Adelphia Communications founder John Rigas are on Time Magazine’s list of Top 10 Crooked CEOs (there are actually only nine on the list).

Nacchio, serving a six-year prison term for illegal insider trading, is No. 5 and Rigas, serving a 12-year term for conspiracy, bank fraud and other charges, is No. 4.

The Denver Business Journal says the list was posted today, but it appears it was compiled last summer and hasn’t been updated. The accompanying text says Ponzi schemer Bernie Madoff is awaiting sentencing and Nacchio’s Supreme Court appeal is pending. Madoff reported to a federal prison in North Carolina in mid-July to serve a 150-year sentence and the Supreme Court rejected Nacchio’s appeal in October.

Madoff tops the list, followed by former Enron honchos Ken Lay and Jeff Skilling.

This week, a federal judge denied Nacchio’s request for a new trial, his last pending appeal. He is slated to be re-sentenced sometime this year, and has argued his prison term should be cut to as little as six months. Nacchio reported to a federal prison camp last April.

UPDATE: (01-13-2010) So Nacchio’s attorneys are arguing that his combined forfeiture and fines should not exceed $3.6 million $5.4 million ($3.6 million in fines plus $1.8 million in forfeitures) and that his sentence should be as short as six months. That’s based on a sentencing statement filed late Tuesday.
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In addition to receiving a six-year prison term, former Qwest chief Joe Nacchio was ordered to forfeit the $52 million in ill-gotten gains for his insider trading conviction.

As part of a resentencing ordered by the 10th Circuit Court of Appeals, prosecutors and Nacchio’s attorneys now agree that the forfeiture amount should be cut to $44.6 million. The new figure takes into account stock-option fees and other costs. It doesn’t factor in taxes paid.

Here is the agreement that was filed in court today, with a breakdown of the proceeds for each of the 19 counts on which he was convicted. U.S. District Judge Marcia Krieger still has to approve the new forfeiture amount.

Nacchio was also ordered to pay $19 million fines – $1 million per count – a figure that is not under review.

By the way, Nacchio’s last pending appeal of the conviction was rejected today.

Attorneys for the U.S. Intelligence Community on Monday asked a federal judge to postpone testimony from a potential witness in the SEC’s civil fraud case against former Qwest officials, stating that it “reasonably could be expected to cause damage to the foreign relations, national defense and national security of the United States.”

U.S. District Judge Marcia Krieger denied the motion. The potential witness in question is Sharon Black, a telecommunications attorney. She is slated to be questioned today by defense and government attorneys to determine whether she will testify during trial, if the case goes that far.

“However, in an attempt to accommodate the legitimate national security concerns of the United States, counsel for the United States may appear at the hearing and interpose a timely objection should any question to or answer,” Krieger said in her order Monday.

The SEC accuses former Qwest CEO Joe Nacchio, former president Afshin Mohebbi, former chief financial officer Robert Woodruff and former accountants Frank Noyes and James Kozlowski of orchestrating a fraud that inflated the Denver company’s revenue by $3 billion from 1999 to 2002.

Black, a proposed defense witness, is expected to testify that when Qwest was selling network rights about a decade ago – or indefeasible rights of use (IRUs) – the company wasn’t pawning off its network because it has more than enough fiber to meet its needs for 50 to 60 years. Qwest had been accused of swapping IRUs with other carriers in a scheme to boost its bottomline. While some of its trade partners booked revenue from IRU sales over the length of the contract – sometimes as long as 25 years – Qwest would record the revenue as a one-time, lump sum. The company ultimately paid $250 million to settle SEC allegations that it duped investors, but didn’t admit or deny guilt.

The SEC is seeking the repayment of salaries, bonuses and stock sale profits from the officials charged in the pending case.

In 2007, Director of National Intelligence Michael McConnell Read more…

A federal judge will resentence former Qwest chief executive Joe Nacchio with the typical two-step process, but will not redo every element of the initial sentencing.

U.S. District Judge Marcia Krieger (pictured) said in a court filing Friday that she will not allow either side to object to portions of the initial sentence that weren’t overturned by the 10th Circuit Court of Appeals. She notes that the appeals court only reversed the sentence with “respect to its gain calculation and its forfeiture determination.”

The gain calculation, however, impacts the prison term. Therefore, a lower gain amount may result in a lighter sentence for Nacchio, who is serving a six-year term at a federal prison camp in Pennsylvania for his conviction on 19 counts of insider trading. The appeals court strongly suggested that the six-year sentence was excessive.

A new sentencing date has not be scheduled.

Nacchio’s attorneys had argued that he should be sentenced anew, with the entire process redone. Krieger said that won’t be the case.

The court “will not consider new or re-asserted objections to the original Pre-sentence Investigation Report, requests for Guideline departures, or arguments with regard to the fine,” Krieger wrote in her order.

The first phase of the resentencing will determine the range of his prison term as stated by federal guidelines, which considers the amount of money that Nacchio gained from the illegal insider trades, information from the pre-sentence investigation report, Nacchio’s background and other factors.

A proposed class-action lawsuit filed Monday alleges Denver-based Qwest failed to live up to its “Price for Life” guarantee on high-speed Internet service.

Plaintiff Rick Grosvenor, a Utah resident, claims Qwest hiked his broadband service rate to $49.99 a month in August 2008 from $31.99 a month even though he had signed up for the “Price for Life” promotion in 2007. The price guarantee requires a two-year commitment.

After Grosvenor complained to the company, his monthly charge was lowered to $36.99, a rate he still pays today under protest, according to the lawsuit filed in U.S. District Court in Denver.

The company still offers a “Price for Life” deal. Incidentally, if you Google “Qwest price for life,” the first few hits lead to complaints lodged on DSL reports about Qwest changing terms of its “Price for Life” agreement. The first post, from August 2008, was about how the company stopped offering the guarantee on stand-alone Internet service.

The lawsuit alleges that a customer service representative told Grosvenor that the company decided to change the rate initially offered with the guarantee to a “promotional rate” because Qwest had enjoyed such a “tremendous response” to the deal.

Currently, Qwest offers a $19.99 promotional rate for the first 12 months of the “Price for Life” guarantee, then the rate jumps to $29.99. The price quoted is for 1.5 meg service and requires a home phone package.

Jeffrey Berens, Grosvenor’s attorney, also represents plaintiffs in another proposed class-action suit pending in Denver federal court that alleges Qwest charged a $200 early termination fee on broadband customers who say they never agreed to long-term contracts that included such a fee.

“Qwest imposes this $200 fee on its (Internet) customers regardless of the customer’s reason for cancelling service, the time remaining on the subscriber’s alleged oral term commitment and the lack of an agreement signed by the customer agreeing to such terms,” the lawsuit states.Read more…

Emilie Rusch covers retail and commercial real estate for The Post. A Wisconsin native and Mizzou graduate, she moved to Colorado in 2012. Before that, she worked at a small daily newspaper in South Dakota. It's the one with Mount Rushmore.